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The Top 10 FELTG Newsletter Stories of 2019

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By Dan Gephart, December 17, 2019

Before we put the wrap on 2019, all of us here at FELTG Headquarters want to thank all of you who make up what our Past President William Wiley dubbed “FELTG Nation” —  our great attendees, customers, and readers. It’s been quite a year as we all worked together to make the government’s accountability systems more efficient.

We couldn’t do what we do without our uber-talented group of instructors, including Barbara Haga, Katherine Atkinson, Ann Boehm, Meghan Droste, Dwight Lewis, Anthony Marchese, Shana Palmieri, Jim Protin, Ricky Rowe, and Joe Schimansky. And we can’t forget the continuing contributions of Bill Wiley and our other past president Ernie Hadley – two absolute legends in the field of federal employment law.

Unless any major stories break before then, we will see you all again in the new year. And it’s a big one for FELTG, as it marks our 20th year of federal employment law training. Meanwhile, we’re expecting Supreme Court decisions on age discrimination and gender stereotyping, both of which will have a major impact on the federal workplace, as will OPM’s regulations implementing President Trump’s executive orders. And we’ll continue to wait with our remaining ounce of patience for someone – anyone, actually – to fill the empty positions on the Merit Systems Protection Board.

For now, let’s take a look back at this year. Introducing the 10 most popular articles (based on the number of reads and forwards) from the FELTG Newsletter in 2019.

  1. Can an Agency Track Down a Former Employee and Discipline Him?
  2. Out of Control
  3. The Fed Who Farted on His Coworkers: The Case is Not Always What it Seems
  4. Cook-ing a Sick Employee
  5. Can You Fire a Federal Employee for Body Odor or Bad Hygiene?
  6. Deep-fried Cubicle Chicken, Naked Employees, and Unwritten Rules
  7. Legitimate Non-Discriminatory Reasons When Preselection is a Defense
  8. Cook, McCauley, and Savage: What if AWOL is Involved?
  9. Can You Fire a Federal Employee Who Accidentally Eats a Pot Brownie?
  10. Excessive Absence and the Third Cook Factor

Here’s to a wonderful holiday season and a successful 2020 for all!

Deep-fried Cubicle Chicken, Naked Employees and Unwritten Rules

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By Dan Gephart, December 11, 2019

Here at FELTG, we like to make things as easy as possible, especially when it comes to discipline. The slide that introduces the elements of the discipline portion of our flagship supervisory training course, UnCivil Servant: Holding Employees Accountable for Performance and Conduct, includes this aphorism often attributed to Leonardo da Vinci:

“Simplicity is the ultimate sophistication.”

With that in mind, we introduce the first element of discipline: Establish a rule. How do you do that? Well, that rule could be a law, an agency regulation, or a local policy that is already in place. A supervisor could establish her own unique rule, such as forbidding cell phones in meetings. But not all rules have been put to paper. Some rules employees should just know, whether they’re written or not.

The federal workplace is not alone when it comes to unwritten, or “should have known” rules. Baseball is full of them. “Don’t bunt to break up a no-hitter.” “Don’t try to steal a base when you already have a large lead.” And “don’t flip your bat to celebrate a home run.” That last unwritten rule will lead to a beanball being tossed, which is an unwritten rule that breaks a written rule.

Want to have a big muscular bro drop his dead weight, then drop you at the gym? Just get in his way while he’s lifting. When you’re heading up the escalator, stay to the right. Leave the left side open for passers.

Here’s an unwritten rule I wish everyone followed: If you’re getting gas and a hoagie at the Wawa, pull your car away from the pump before you go inside. That spot next to the gas pump is not a parking space.

These rules are basically assumed societal contracts based on common sense and respect for our fellow human beings, whether it’s on the baseball diamond, in the gym, ascending from the Metro, or in the workplace.

Have you ever felt a desire to be elsewhere more than when you catch that initial whiff of something awful from the microwave slowly snaking its way down the hallway to your work station? That’s a big unwritten workplace rule being broken. However, truth be told, a foul-reeking microwave will lead to someone scribbling the rule down on a piece of notepaper and taping it angrily onto the microwave door, thereby taking away its “unwritten” status.

Are you going to discipline someone for cooking yesterday’s fish in the microwave? No. If the culprit fesses up, though, you should have a short talk with him, preferably in an office far from the kitchen. But you should take a less-forgiving approach to an employee who is deep-frying chicken in her cubicle. Microwaved fish is smelly, deep-fried cubicle chicken is a fire hazard.

And, yes, that fire hazard really happened. It’s one of many stories of jaw-dropping unwritten rule-breaking we’ve heard from our customers over the years, which also includes the employee who thought running naked through the hallway was a fine idea since it wasn’t forbidden in the dress policy, and the employee who liked to masturbate in the office supply closet during work hours.

There are numerous tales of employees catching a little snooze at the most inappropriate of times and places. [If you’d like to share your own unwritten rule story, anonymously of course, then email me.]

You have to wonder how many ZZZs it took for the General Services Administration to propose a rule last month to prohibit sleeping in federal buildings. (I admit an editorial conceit here. The GSA rule, as FELTG President Deborah Hopkins explained last month, is meant to address overnight camping. Still, we’ve pored over the text of the proposed rule and we don’t see it.)

There are clearly more should-have-known rules than written ones. The creativity with which some humans find ways to set new low standards of workplace behavior is abundant.

So if you’re faced with disruptive behavior for which there is no current law, policy, regulation, or rule, and you wonder if it falls in the should-have-known category, ask yourself these questions: Is it common sense? Did the employee’s action show a lack of respect for his or her co-workers?

In other words, don’t overthink it. Keep it simple. Gephart@FELTG.com

Do You Really Want to Give a Poor Performer the 5-Star Lyft?

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By Dan Gephart, November 13, 2019

John Horton knows which rating you gave your last Uber driver.

Horton isn’t a mind reader. He’s a professor at New York University, and he studies online marketplaces. His research found that most Uber/Lyft customers give their drivers a 5-star rating, regardless of the quality of the ride, the choice of music, or the stink of the car. Online publisher Mic recently broke the study down: “(P)eer-to-peer apps are designed to induce customer guilt and thus promote rating inflation. The act of sitting in a car with your service provider, the study found, humanizes them.”

I have a similar penchant for overly positive ratings when it comes to Goodreads. The social media app allows you to track the books you’re reading, have read, or want to read, and to rate and review those books, then share that information with others. Like Uber and Lyft, it uses a five-star rating system. As the husband of an author, I know how much work goes into researching, writing, editing, and revising a book, and it sways my Goodreads ratings. Absorbing, engaging, well-written page-turners that I want to read again and share with the world? That’s easy – five stars. Books that weren’t bad, but quickly forgettable? Five stars. Did the book fall flat, put me to sleep, or take a huge effort to even finish? Five stars, five stars, and five stars. Basically, if your book got four stars from me, you might want to put down your pen before you hurt somebody.

Economists, social scientists, and tech experts have been raising concerns about five-star rating systems for the last several years. A recent Harvard Business Review article stated :“(W)hile simple five-star systems are good enough at identifying and weeding out very low-quality products or suppliers, they do a poor job of separating good from great products.”

There is an inherent problem with five-star ratings, whether they are being used to select restaurants or book travel. And that glitch is heightened when the reviewer and reviewed have formed a human connection. Yet when it comes to measuring the work of federal employees, many agencies still use a five-step performance rating system. And there are few humanizing situations like a performance review.

It’s not as if we don’t have a problem with poor performance in the federal workplace.  In the latest Federal Employee Viewpoint Survey, only 36 percent of non-supervisory employees believed that appropriate steps are taken to deal with poor performers. And this problem has been around a lot longer than the FEVS. When looking through old MSPB reports for my recent And a Word With … interview with James Read, I came across the agency’s Federal Supervisors and Poor Performers, submitted to the President and Speaker of the House in 1999. The report’s executive summary states the following:

Federal employee surveys and other indicators over at least the last 18 years suggest that most employees, including supervisors themselves, judge the response to poor performance to be inadequate.

FELTG training attendees know that in any given year only three or four percent of removal actions (aside from suitability, probationary, or other less-common removals) are performance-based, while the remaining removals are conduct-related. Even a math-challenged Training Director can tell you those statistics are out of whack with 40 years of concern about performance.

There are dozens of reasons why poor performance problems continue to flourish seemingly unabated, and five-step performance systems probably won’t make anyone’s top five of those reasons. Not that there aren’t others reason to oppose five-step performance systems. They can even lead to overturned performance actions, as FELTG Past President Bill Wiley has explained previously.

Here’s the issue: The five-step performance systems offer sympathetic supervisors a gray area, giving them an out on a tough decision, and allowing performance problems to linger. In the tech world, the five-star rating systems fail to separate the good and great. In the federal workplace, those systems also fail to separate those successfully meeting their job requirements from those who aren’t.

In a five-step system, the third level is usually “fully successful” and the second level is usually “minimally successful.” As Barbara Haga points out during the Performance Management portion of her three-day Advanced Employee Relations course, an employee can be rated at Level 2 for his entire federal career and a performance-based action cannot be taken. [Side note: Don’t miss Barbara’s upcoming Advanced ER sessions in New Orleans or Atlanta.]

Why should we allow an employee who is not fully successful to continue working at that level with no apparent end? Oh, he won’t get any step increases. And he may lose some retreat rights in RIFs. Do you think that matters to the coworker watching this minimal performer do the absolute minimum?

By the way, if you did not give your Uber/Lyft driver a 5, kudos to you. You are not an uncaring human. In fact, the most altruistic customers are the ones who give honest feedback, according to Horton. As a result, they improve the rides for everyone.

So supervisors: Next time you’re making a decision on performance ratings, be as honest as possible, and improve the employment ride for the rest of your employees. Gephart@FELTG.com

And Now a Word With … James Read

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By Dan Gephart, November 5, 2019

Last month, we talked with MSPB General Counsel Tristan Leavitt about the adjudicatory and other work that the 200-plus employee agency continues to do despite not having any Board members since February. It’s a few weeks later and the Board still lacks members, while the lack of a quorum has inched even closer to hitting the three-year mark.

This month, we catch up with James Read. The former chief counsel for then-Member Robbins took over as director of the agency’s Policy and Evaluation office a few years ago. Read oversees the group of psychologists, HR specialists, statisticians, and lawyers who fulfill the agency’s statutory responsibility to conduct objective, non-partisan studies of the Federal civil service and other merit systems in the Executive Branch.

DG: How have your unit’s reports been hampered by the lack of a quorum?

JR: We’ve been putting out publications in shorter form since we lost the quorum, but it’s more than just length. The official reports as described in statute go to the President and Congress and are approved by the board, and they typically contain policy recommendations. They are only issued with approval of board members. Our thinking is that to the extent we can provide useful information through research briefs, we should. They are a little lighter on recommendations, but we have been putting out publications.

We have information about sexual harassment in the federal workplace that others don’t have. We’ve been releasing some of it, but an official report is on hold. Almost everything else we’ve been trying to convert to shorter publications.

DG: How do you measure whether a report is successful?

JR: We don’t have a hard measure. We look at the audience for which a report may be intended, and see what effect it had on the audience. Some reports are for policy makers. A successful report would be one that results in change of policy. An example would be our 2014 report that talked about veterans hiring, and a DOD-specific authority that was restricting competition for jobs and had other unintended consequences. Congress took it up and changed the law — and cited our report. That’s an example of success.

Other reports, we intend as educational pieces. Some are intended for managers and new leaders to help educate them. I’ve heard of chief learning officers in agencies using our reports to design in-house training. When that happens, a report did its job.

Sometimes, reports are intended for multiple audiences at the same time. We’ll have practice pointers intended for HR and managers, footnotes and appendices intended for researchers, people trying to replicate the work in their organization. We believe it’s important to show our work, so we remain credible. We’re not just sitting here in an ivory tower contemplating. We have an empirical basis for our findings.

DG: You recently asked for input on what reports people want to see. What kind of input did you get? What reports will you be doing based on that feedback?

JR: (We received) hundreds of ideas. The last time we went out asking for ideas was 2014, so five years on we felt we needed to refresh the ideas. The timing seemed to make sense with the lack of quorum. We went out to stakeholders, unions, chief human capital officers, affinity groups, and individuals. A lot of what we got were variations on themes of what we’ve seen throughout the years: Are whistleblower protections adequate? How can we improve the hiring, classification, compensation and performance management systems? Are they due for overhauls? How does the government adapt to changing expectations of younger workers? What alternatives might there be to the Title 5 system? We’ve been vetting and refining the ideas for several weeks now. Our goal is to have a proposed agenda to present to the new chairman when he arrives.

DG: What has been the most controversial report you’ve done?

JR:  A 2015 report of how agencies use various appointing authorities and the results of the different choices agencies make caused a bit of a stir. The report found Title 5 hiring rules systematically favor men over women. We found, for example, that since the 1970s, women’s participation in general civilian labor force grew from the lower 30 percent range to almost 50 percent, but in many years the government was not even reaching 40 percent.

The Civil Service Reform Act of 1978 states that the Government should strive to achieve a workforce representative of all segments of society. For many years now, women have been earning more bachelor’s degrees than men and they make up almost half the civilian workforce, yet under 40 percent of new hiring is women. This took people by surprise. They thought we were attacking OPM, and that was certainly not the intention. The biggest question raised by report was: What do we do about this?

One side note: We were criticized for not including VA nurses. If we had included them in the percentage of women as new hires, it would’ve been higher. But in a way, that criticism showed our point. We were looking at Title 5 hiring, and the nurses at the VA are hired under Title 38. So staying within Title 5 world, you do see a hiring system that appears to disadvantage women.

DG: Will you follow up on this report?

JR: I’d like to follow up. The last time I looked at the numbers was for FY 16 and they hadn’t budged. It’s a good area for follow-up, not a full-blown report but a dive into the statistics. It may be that to some extent women are making individual choices not to seek government employment in the same numbers as men do, so we need to study the applicant pool.

DG: The Supreme Court will rule this term on whether Title VII covers discrimination based on sexual orientation. You did a report on that a few years ago. However, that report wasn’t controversial. 

JR: There had been questions swirling for years: What’s the source of the prohibition? Title VII of the Civil Rights Act? The CSRA of 1978? Something else? We looked at the history of systematic discrimination against gay employees and the gradual change of view to acceptance. Clarity regarding the legal prohibitions was needed, but MSPB had be extremely careful not to come down on one side or another because MSPB is not a policy-making body. Every year since 2000 or so, there was someone in the House who introduced a bill to amend Title VII to prohibit discrimination in employment based on sexual orientation. We didn’t want to look like we were taking a side in the debate. We were expecting some backlash from the report, and we didn’t get it. The report was well-received.

DG: What other reports have had impact?

JR: There was a pair of related publications from 2015. One was a full report on due process, an official report to the President and Congress. Another report was on adverse actions. Deb (Hopkins, FELTG President) quoted from it in your newsletter recently, and that’s an illustration of its lasting power. In 2014-15, influential voices were saying “the system is broken, and you cannot fire a federal employee. Maybe we should go at-will.” It turned out that many people managing in the system didn’t understand it. They thought you needed a higher standard of proof to fire a federal employee than the law requires, and we pointed out that’s not the case. We developed an outreach program around the publications. The message I tried to deliver was managers need to understand the system and have the will to act, and the support of the agency. We don’t need to throw out rules or abandon due process.

DG: What do you see as the most significant challenge facing the civil service in the next 10 years?

JR: The relationship between Washington and local agencies needs to be recalibrated. I’m not suggesting one direction or another. Look at what happened in ’90s. OPM was cut in half in terms of its resources and authorities were delegated to the field. In the area of hiring, for example, you see the difficulties in the system. Twenty-five years ago there was the symbolic burning of the (Federal Personnel Manual). The rules and the laws upon which they were based were not repealed, however, even as OPM delegated authority to several hundreds of offices that now have the responsibility for developing sound recruitment strategies and rigorous legally compliant assessments, and then evaluating applications. That’s hard for a typical HR office to do that well; the exceptions would be the really big departments with ample resources and expertise that hire many people under same job series on a regular basis. In other words, hiring might not be susceptible to effective scaling down.

The challenge is recalibrating the model of central HR policymaking with local decision-making and execution in such a way that HR can be done better. We’ve been studying the effectiveness of the HR workforce, and are finding that there’s great dissatisfaction among managers and agency leaders on what they are getting from their HR shops. It’s not necessarily the fault of the people in HR. The dissatisfaction may stem from the challenges intrinsic to the current decentralized model.

Gephart@FELTG.com

Supreme Court Hears Arguments on Gender Stereotyping Cases

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By Dan Gephart, October 16, 2019

The Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) made it clear that Title VII not only protects employees from being treated differently based on their sex. It also protects employees from being treated differently because they fail to adhere to their gender norms.

We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’

The Hopkins decision is the bedrock for protection from gender stereotypes under Title VII. In recent years, the EEOC has interpreted that protection to include gay, lesbian, and transgender employees.

In Macy v. Attorney General, EEOC No. 0120120821 (April 20, 2012), the EEOC concluded that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on…sex’ and such discrimination therefore violates Title VII.”  And in Baldwin v. Secretary of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the EEOC ruled that “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”

Many courts have agreed with the EEOC. The 11th Circuit Court of Appeals may have put it most succinctly, at least in terms of transgender employees, ruling “a person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”

But not all courts agree with the Commission. And neither does the Department of Justice. DOJ attorneys made their case last week before the Supreme Court, which heard oral arguments on Bostock v. Clayton City and Zarda v. Altitude Express, to determine whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964. The High Court also heard arguments in Harris Funeral Homes v. EEOC to determine whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

During the hearing last week, Solicitor General Noel Fancisco argued: “Sex means whether you’re male or female, not whether you’re gay or straight.” The lawyer representing Bostock and Zarda told the Justices that all they need to do is “show that sex played a role here.”

How will the Supreme Court rule? It’s hard to guess. If you saw my football pools this year, you’d immediately look elsewhere for prognostication. And if you’re talking legal analysis, you’d be much better off asking FELTG President Deborah Hopkins, or read FELTG instructor Meghan Droste’s recent article.

Many analysts see a 5-4 decision with Justice Neil Gorsuch as the deciding vote.

One thing we know for sure: A ruling in the Department of Justice’s favor will allow employers, including federal agencies, to fire an employee solely for being gay, lesbian, or transgender, or even for being someone who doesn’t neatly conform to gender-based standards. It’ll strike a serious blow to diversity and inclusion in the federal workplace.

Let’s face it, not everybody has a comfortable grip on the law as it is now. It’s painful to imagine a workplace where the actions described in the following EEOC decisions go unchecked:

  • In Larita G. v. USPS, EEOC No. 0120142154 (November 18, 2015), a supervisor referred multiple times to a lesbian employee as “the little boy” or a “guy.” When the complainant told the supervisor “I am not a guy, I am a lady,” the supervisor replied, “So that’s why you have to be so difficult.”
  • In Couch v. Department of Energy, EEOC No. 0120131136 (August 13, 2013), coworkers told the complainant that he was unwelcome and should get another job. They referred to him as “fag,” “faggot” and “gay” and told him everything he did was “gay.”
  • In Jameson v. USPS, EEOC No. 0120130992 (May 21, 2013), the EEOC found hostile work environment as the supervisor “repeatedly” referred to a transgender female employee as “he” and encouraged others in the workplace to use the male pronoun and refer to the employee by the employee’s previous, male name.

Actually, behavior like that in the EEOC cases above still does sometimes go unchecked. Last week, the American Federation of Government Employees Local 3403 demanded the agency take action against managers who bullied, intimidated, and harassed LGBT employees at the National Science Foundation.

It could get a lot worse for LGBTQ+ employees depending on how the Supreme Court eventually rules on this trio of gender stereotyping cases. Gephart@FELTG.com

Civil Service Update: October 2019

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By Dan Gephart, September 18, 2019

Welcome to FY 2020. Didn’t it feel like we spent most of the previous fiscal year waiting? Waiting for new Merit Systems Protection Board members to be confirmed. Waiting for some type of resolution on the portion of President Trump’s Executive Orders that were under injunction. Waiting for guidance from OPM.

But we’re waiting no more, at least when it comes to the Executive Orders. In case you missed it, here’s a quick recap. President Trump issued three Executive Orders in May 2018 aimed at curtailing union activity and increasing supervisors’ ability to hold employees accountable for misconduct and poor performance. Three months later, several provisions of those Executive Orders were set aside as illegal, per a D.C. District Court decision. Several weeks ago, an Appeals Court overturned the District Court decision. The unions sought an en banc re-hearing, which the Appeals Court has refused.

What does that all mean? Well, the Executive Orders are now fully in play. OPM Director Dale Cabannis was quick to alert agencies, writing in an October 4 memo: “Accordingly, all provisions of these executive orders, including previously enjoined provisions, are in full force and effect and should be implemented consistent with the requirements and guidance contained in the EOs.”

Agencies are now expected to set time limits on bargaining, severely restrict official time, and are allowed to charge unions rent for office space, and that’s just the Labor Relations portions of the Executive Orders, and the president issued a memo to that effect last week. If you deal with federal unions, it’s a good time to register for FELTG’s FLRA Law Week, which takes place next week – October 21-25, 2019 in Washington, DC.

Speaking of the FLRA, the agency recently started posting quarterly case digest with summaries of its decisions. These digests contain summaries of full-length merit decisions issued by the authority. This is part of the FLRA’s strategic to plan to make those decisions more easily accessible. The digests are available on the FLRA website.

That October 4 memo wasn’t the only one the OPM Director sent to agencies. The previous week, Cabaniss issued  Maximization of Employee Performance Management and Engagement by Streamlining Agency Performance and Dismissal Policies and Procedures. Among the items discussed are streamlining performance and misconduct procedures and eliminating unnecessary barriers to holding employees accountable.

If those topics sound familiar to you in FELTG Nation, it might be because that’s what we’ve been teaching for the past 19-plus years. Those of you who have been to MSPB Law Week or Developing & Defending Discipline have a nice head start on what OPM wants. You might equate unnecessary barriers to what we at FELTG call “yellow donut” items. The yellow donut is full of things that are perfectly legal to do, but are legally useless in developing your performance- or misconduct-based actions. They waste your time and misdirect your efforts. As Deb puts it, the yellow donut is full of empty calories.

And hey, how about those MSPB appointments? Just kidding. I’m afraid we’re still waiting for those. In the meantime, be sure check out to last month’s And Now A Word With … Tristan Leavitt, where the MSPB General explained to FELTG readers what the agency is still doing while it waits for the return of a quorum. Lots going on, and lots more to come. We’ll keep you posted. Gephart@FELTG.com

And Now a Word With … Tristan Leavitt

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Tristan Leavitt, General Counsel, Merit Systems Protection Board

By Dan Gephart, October 1, 2019

More than 200 employees work for the Merit Systems Protection Board in numerous regional and field offices across the country. But it’s the three offices that sit empty at the Board’s Washington, D.C., headquarters that have drawn the most attention.

It’s been more than seven months since then-Chairman Mark Robbins’ term expired. Robbins spent his last two years as the Board’s only member. The Board has lacked a quorum since January 2017 and, therefore, has been unable to issue final decisions on petitions for review for almost three years.

While those three offices on the MSPB’s Executive Floor sit dark, its career employees continue to toil away. We caught up with General Counsel Tristan Leavitt to find out what the MSPB has been doing – and what it has not been able to do – since former Chairman Susan Grundmann’s departure nearly three years ago, when the Board last had a quorum. Under the MSPB’s continuity of operations plan, Leavitt, as GC, has assumed the responsibilities for the executive and administrative functions vested in the Chairman.

Before joining MSPB a year ago, Leavitt was principal deputy special counsel at the U.S. Office of Special Counsel. He also worked for eight years on Capitol Hill, where he served on the staff of the House Oversight and Government Reform Committee and the Senate Judiciary Committee.

DG: Tell us about the work that continues on the adjudication side at MSPB.

LT: AJs have issued approximately 14,550 initial decisions since the Board first lost its quorum in January 2017. At that point, parties have two options. The first option is to submit a petition for review to the full Board, at which point MSPB’s Office of the Clerk dockets the appeal and MSPB’s Office of Appeals Counsel prepares a draft opinion for Board member consideration.

Of the approximately 2,325 PFRs currently pending at MSPB headquarters as of August 31, 2019, 2,180 have had draft opinions prepared by the Office of Appeals Counsel. (MSPB publishes these numbers monthly.) If a petition for review of an initial decision isn’t filed within 35 days, the decision becomes the final decision of the MSPB, at which point the appellant may appeal it to the U.S. Court of Appeals for the Federal Circuit or, in whistleblower cases, to any U.S. Court of Appeals in the country.

In addition, mixed cases may be appealed to a U.S. district court. MSPB’s Office of General Counsel continues to review such federal filings and represents the MSPB as necessary in litigation.

DG: How many PFRs involve back pay or attorney’s fees?

TL:  MSPB doesn’t track at an enterprise level which PFRs involve back pay or attorney’s fees, but 177 are PFRs or cross-PFRs from agencies, and of those, 95 involved the AJ ordering some form of interim relief in the initial decision.

DG: What other work does the MSPB continue to do?

TL: In addition to these various functions surrounding adjudicative work, MSPB’s Office of Policy and Evaluation continues to conduct research pursuant to the agency’s statutory mission to conduct studies of the merit system. [Editor’s note: We’ll have more on the MSPB’s studies in an upcoming article.] Although MSPB does not issue final studies without a quorum, the agency has conducted research and prepared a number of draft reports for an incoming Board to review and consider publishing.

MSPB has also continued to publish a regular newsletter and issue smaller publications on useful topics such as Remedying Unacceptable Employee Performance in the Federal Civil Service, Improving Federal Leadership Through Better Probationary Practices, and The Perceived Incidence of Prohibited Personnel Practices.

DG: What functions have been impacted most, other than the growing PFRs, over the course of this lack of quorum?

TL: Besides the Board itself issuing no decisions, the largest impact on the adjudicative side is the inability to issue stays in response to requests from the Office of Special Counsel. MSPB is also impacted in its studies function and on the regulatory side, where the agency cannot promulgate substantive regulations in the absence of a quorum.

DG: Is there a plan or structure in place so that when Board members are confirmed, they can most efficiently begin to tackle the backlog?

TL: Because the approach to the backlog ultimately is the prerogative of a Board itself, it’s difficult to make definitive plans at this point regarding how to tackle the backlog. Nevertheless, MSPB has taken a number of steps to prepare to swiftly carry out whichever approach a new Board settles on. A new Board will be able to see which types of cases are in the backlog and how old they are. Staff have also drawn up various plans for dealing with the backlog, which the new Board may adopt or modify.

Gephart@FELTG.com

 

Why Do We Suggest You Put a Douglas Analysis in the Proposal Letter?

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By Dan Gephart, September 18, 2019

Here at FELTG laboratories, we create training that teaches the no-nonsense way of doing things, especially as it pertains to handling misconduct. You know the saying that the straight line is the quickest and easiest way to get somewhere? FELTG teaches that straight line on discipline.

Sometimes, however, we hear from attendees who, in the words of Col. Nathan R. Jessup, “can’t handle the truth.” These encounters usually start with something like … “but our HR Office says” or “our counsel told us differently.”

If you’ve been a part of MSPB Law Week or Developing & Defending Discipline, or sat in on our flagship UnCivil Servant training, you know that we teach that the Douglas Factor analysis should be included with the advance notice, or proposal. Heaven forbid! You’d think we were suggesting you fire off a nuclear weapon to stop a hurricane. “Who told you we should do that?” “Where is that in the law?” “Where’s the case law on that?” This hasn’t happened once or twice. This has happened numerous times, and continues to happen.

There is no mystery, and we’re going to address it right here, right now. The reason for including the Douglas analysis in your proposal letter is three-fold: There’s the concept of due process, as well as a statutory reason, and, yes Virginia, there is case law – the original Douglas decision.

Let’s get the answers directly from the brain of FELTG Past President William Wiley, co-author of UnCivil Servant: Holding Government Employees Accountable, 5th edition. After all, Bill is the one who has been challenged on this point more than anyone else.

Let’s start with due process.

Bill: The concept of fairness in our business requires that we tell an employee why we want to fire him so that he can defend himself before a final decision is made. We cannot have secret reasons for firing an employee. If a practitioner cannot agree with that fundamental principle of due process, we have little hope in moving them forward toward the right answer. An explanation of why we’ve chosen the penalty we have chosen is basic to employees being given a chance to defend themselves. For example, say that an employee engages in a loud profane argument with his supervisor. One reason the Proposing Official might think that such misconduct warrants removal rather than something less is because the argument took place in front of members of the public. The employee should be informed of that aggravating factor in the proposal notice so that he can argue that the argument did not take place in a public area, or that it was not in fact actually heard by a member of the public. We teach that by including a Douglas Factor analysis along with the proposal, we put the employee on notice of the reasons we selected the penalty of removal, thereby providing due process and an opportunity for defense.

Now, the law.

Bill: The proposal notice must state the “specific reasons” for the proposal. 5 USC 7503(b) and 7513(b). The selection of a particular level of penalty is intimately related to the “specific reasons” that a removal has been selected, rather than a lesser penalty. See Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011) for a decision in which the court slammed the Board for denying due process relative to the penalty analysis.

And, finally, case law.

Bill: The Douglas decision itself says that the aggravating penalty factors ”should be included in the advanced notice.” A Douglas Factor analysis, I will concede, contains both aggravating and mitigating factors. The reason to do a complete Douglas Factor Worksheet along with the proposal notice is to avoid a misunderstanding as to what constitutes an aggravating factor as compared to a mitigating factor (or a neutral factor). If we took the narrower approach and just included what we considered to be aggravating factors in the proposal – rather than the full Douglas Factor analysis – we run the risk of omitting a factor that, on review, the Deciding Official decides is indeed aggravating.

This is where agencies sometimes mess up. Length of service is one of the most-used Douglas Factors, and we’ve seen it presented as an aggravating factor and a mitigating factor. Which is it? Shouldn’t matter for the Proposing Official. Simply include the fact that the employee has five years of service in the Douglas analysis. That allows the Deciding Official to make his or her own judgment on how to consider the length of service.

The harder question to answer is why this concept is so hard to believe. Maybe it’s because judges seem to have little interest in what the Proposing Official thinks about the penalty selection. When it comes to penalty, the judge wants to hear from the Deciding Official. But the Deciding Official will make his/her conclusions based on the Douglas Factor assessment.

And while you’re at it, include the Douglas Factor worksheet with the proposal notice, too. Why do that? Mark your calendars for the next MSPB Law Week on March 9-13, 2020. Gephart@FELTG.com

And Now a Word With … The Hatch Act Unit

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By Dan Gephart, September 10, 2019

It’s always interesting when federal employment law makes its way into mainstream conversation. After Kellyanne Conway’s failure to understand and comply with the Hatch Act made headlines, people who have yet to figure what kind of work I do were telling me about the Hatch Act.

Back in a previous life, I edited a book on compliance with the Hatch Act. In terms of length, the book was less Stephen King’s The Stand and more Shirley Jackson’s The Lottery. And like those aforementioned stories, the Hatch Act, which originally became law in 1939, had an element of horror: The punishment for Hatch Act violations was termination.

Then in 2012, the Hatch Act was updated to allow more discretion in punishment, along with several other provisions. This made sense. Some Hatch Act violations are more severe than the others. Thanks to the change in the law, the rise of social media, the overt politicization of almost every aspect of our lives, and the increasing divide in the country, the Hatch Act has become a lot more difficult to navigate.

However, you do not need a book to get your answers. The Office of Special Counsel oversees the Hatch Act. Its Hatch Act Unit, led by Ana Galindo-Marrone, handles all matters related to the law, and provides regular guidance. All you need to do is ask. If you are seeking advice about your political activity or the activity of another employee, under the Hatch Act, you may request an advisory opinion from OSC by calling (800) 854-2824 or (202) 804-7002. You can also email the Unit at hatchact@osc.gov.

Thank you to Ana Galindo-Marrone and her team at the Office of Special Counsel’s Hatch Act Unit for answering our questions.

DG: Must a federal employee’s personal social media account be free of any reference to their governmental position if they expect to post political content?

OSC: No. The Hatch Act does not prohibit employees from including their governmental position in the biographical information section of their social media account, even if they post political content on that account. However, if the employee is using the account for official purposes, the employee should not engage in political activity on that account.

DG: What Hatch Act violations are you seeing in this political cycle that are new or unexpected?

OSC: We are seeing more violations involving employees engaging in political activity in their official capacities, whether on official social media accounts or in the performance of their official duties. We also have received more complaints about employees openly stating or displaying their support or opposition to a candidate in the workplace.

DG: If a federal supervisor thinks one of her employees is in violation of the Hatch Act, what should she do?

OSC: Federal supervisors can call OSC’s Hatch Act Unit to discuss whether the employee’s activity violates the Hatch Act, and if so, the best course forward.

DG: If a federal employee’s relative is running for office, what are the limitations on the assistance a federal employee can provide to the campaign?

OSC: It depends on whether the employee is less restricted or further restricted. Less restricted employees, which are the majority of the federal workforce, generally may provide support to a relative’s campaign, as long as they do not:

  • Engage in any campaign-activity at work, including using social media or email.
  • Fundraise for the campaign by any means.
  • Use their position to assist the campaign by, for example, involving subordinate employees in the campaign or engaging in campaign activity in their official capacity.

Further restricted employees generally are those employed in intelligence and enforcement-type agencies or who hold certain positions, such as career SES. They may not take an active part in partisan political campaigning, which means they may not engage in any activity in concert with a political party or candidate for partisan political office (e.g., working as a campaign volunteer, distributing campaign materials, circulating nominating petitions, etc.). In addition to the limitations placed on less restricted employees, further restricted employees may not provide assistance to a relative’s campaign if such assistance is done in concert with the campaign. They may, however, make a monetary donation to the campaign, appear in a family photograph that is used for campaign purposes, or accompany the candidate to a campaign-event. Gephart@FELTG.com

Create a Healthy Environment for Employees with Mental Disabilities

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By Dan Gephart, August 14, 2019

Two mass shootings earlier this month left America shaken. After the horrific event in El Paso, we went to bed saddened, only to wake to news of similar violence in Dayton. The aftermath of these tragedies is as predictable as the ending of the Titanic movie. Thoughts are shared, prayers are offered, and urgent pleas for gun reform are made. National news trucks set up camp in town, then pack up after the vigils and funerals are held.

At some point during the aftermath, conversation turns to mental health. We need to improve the mental health care system in this country. But when politicians and talking heads discuss mental illness only after a violent event, they reinforce the myth that people with mental health impairments are violent and unpredictable.

Sadly, those myths still infiltrate our workplaces, so I’m using my FELTG soapbox this month to explain what you can do to create a healthy work environment for employees with mental disabilities. If you attended Shana Palmieri’s FELTG webinar, Successfully Managing Federal Employees with Mental Health Disabilities, earlier this year, then this information is not new to you. [If you missed the webinar, I highly suggest you contact us to order a recording.]

It’s not true people with mental illness are unstable employees and more prone to violence. It’s not true people with mental health issues are unable to hold down a job, just as it’s not true personality weakness or character flaws cause mental health problems.

Here are the facts:

  • Only 3-5% violent crimes are committed by people with a mental illness, according to data from Health and Human Services. In fact, statistics show people with mental illness are at least 10 times more likely to be the victim of a crime than the general population.
  • People with mental health impairments are just as productive as other employees.
  • Mental health diagnoses are caused by a combination of biological factors (genes and brain chemistry), life experiences that may include trauma and abuse, and family history.

Why should you care about this? Well, one in five Americans are living or with or have experienced a mental health condition, and mental health problems are the leading cause of disability in the United States, according to the National Alliance on Mental Illness. So whether you know it or not, you are working alongside a colleague or a supervisor, or managing an employee with a mental health impairment.

Due to the myths and the stigma, as well as the aforementioned lagging health care system, only a third of individuals with mental health issues seek treatment. That’s not good for the workplace, as it leads to the indirect costs of lost productivity and absenteeism. On the flip side, 80 percent of employees who do receive treatment for mental health issues reported improved job satisfaction and improved efficiency.

Creating a healthy workplace environment that is inclusive of individuals with mental health disabilities does not mean getting personally involved in an employee’s life, or taking on the role of a counselor. In fact, that prying is counterproductive. Here’s what a health workplace environment does:

  • It is receptive to employee requests for accommodations, even if that person’s impairment may not be obvious to you. Most accommodations that have been effective for employees with mental disabilities cost very little.
  • It addresses bullying behaviors that create work-related stress and present risks to the mental health of workers. Unchecked bullying leads to reduced productivity and increased staff turnover.
  • It ensures managers and supervisors provide regular honest and constructive feedback to all employees. Strong communication practices benefit all employees.

These actions not only support employees with mental health disabilities, they help all employees, and they make your agency nimbler and more productive. Gephart@FELTG.com